witness to prove the amount of saving effected by the plaintiffs' invention. On the other hand, it was submitted that Armstrong's evidence could not be material or useful, inasmuch as he did not appear ever to have seen the boilers at work. The master disallowed Armstrong's expenses, on the ground that his evidence had not been received by the

arbitrator.

The plaintiffs also claimed a sum of 717. 148. 5d. which they had paid, on taking up the award, to the attorneys who had been employed by the arbitrator to draw it. This sum consisted of 521. 10s., the arbitrator's charge, and 197. 58. 6d., the attorneys' bill. This last-mentioned charge the master disallowed, with the exception of 17. 15s. for the stamp-duty, on the ground, as was alleged, that an arbitrator is not entitled to charge for professional assistance in preparing his award.

Atherton, in Easter Term last, moved for a rule to show cause why the master should not review his taxation in respect of these two items. He submitted, that, inasmuch as the charge for the attendance of the scientific witness would have been allowed if the cause had been tried before a jury, there was no reason for excluding it, merely because the arbitrator, himself a man of scientific knowledge, did not require his assistance. [CRESSWELL, J.-The contract was for a known article, and would be well performed by the delivery of the articles, and showing that they were patent boilers.] The only matter in issue was the amount of saving in fuel; and that could only be ascertained by actual experiment or the opinions of experts. Then, as to the costs of the award,-*where a lay arbitrator is employed, not only is he [*230 justified, but he is obliged to obtain the assistance of a professional man in the preparation of his award,-Russell on Awards, 204: and there can be no pretence for saying that that is to be done at his own expense. [JERVIS, C. J.-I certainly never heard of a charge for drawing an award. The course here pursued gives the attorneys a lien upon the award for their bill. However, as there must be a rule on the other point, this one may be discussed also; but I would not be understood as holding out any hope of success.] A rule nisi having been granted,

Watson now showed cause.-It is entirely in the discretion of the master, regard being had to the matters in issue, and to the facts which the witness is called to prove, to say whether or not he is a material witness. Now, whether the plaintiffs' patent was a good one or not, was not the question: the whole contest between the parties was as to the amount of saving in fuel effected by the newly constructed boilers over the old ones. That could be tested only by experience. It was useless, therefore, to bring a man like Armstrong, who, whatever amount of skill and scientific knowledge he might possess, knew absolutely nothing of the fact. [MAULE, J.-The arbitrator rejected him because he was immaterial. He rejected him, perhaps, for a bad reason; but

there was a good one, viz. that he was not admissible. JERVIS, C. J.— Where the judge at Nisi Prius rejects a witness, right or wrong, the master never allows for his attendance.] Then, as to the charge for preparing the award,-it appears that there were four meetings before the arbitrator, for which he has charged 50 guineas: that surely is a sum amply sufficient to cover the expenses of drawing the award; even if the arbitrator had a right,-which it is submitted he has not-to *employ professional assistance of that sort at the cost of the

*231] parties.

Atherton, in support of his rule.-Armstrong, upon the advice of counsel, attended at the Assizes, and also before the arbitrator at Bolton; and the sole ground upon which the master declined to allow his expenses, was, that the arbitrator had not thought proper to hear his evidence, because, being himself an engineer, and therefore competent to form his own opinion upon the subject, he did not choose to avail himself of his assistance. However that might justify the disallowance of the expense of Armstrong's attendance before the arbitrator, it clearly could not disentitle the plaintiffs to the witness's attendance at Liverpool. Whether Armstrong was a material witness or not, it is unnecessary now to argue the plaintiffs were not heard on that before the master; the consideration of that question was dismissed by him upon an erroneous ground. [JERVIS, C. J.-If the master's conclusion is correct, it matters not what reason he assigns. If the cause had been tried in the usual course, and the judge had rejected Armstrong's evidence, you could not have had the costs.] No doubt that is so, whether the decision of the judge was right or wrong. [MAULE, J.-The court does not sit strictly as a court of appeal from the decision of the master. Costs of increase are allowed at the discretion of the court; but that discretion is, for convenience sake, exercised through the master. The court has still an original jurisdiction. You may now urge that the expense of the witness's attendance ought to have been allowed, on the ground that he was a material witness.] Assuming it to be necessary to go into the question of materiality, it is submitted that Armstrong was a proper person to be called as a witness. The professional skill and knowledge he possessed would enable *him to say what in the *232] ordinary use of a boiler constructed upon the plaintiffs' principle would be the saving effected in the consumption of fuel. The next question is whether or not a lay arbitrator is justified in making a charge for professional assistance in the preparation of his award. The master allowed only the price of the stamp, on the ground that the arbitrator is bound to prepare the award himself. This, it is submitted, is a most inconvenient as well as a novel conclusion. [JERVIS, C. J.-The arbitrator, by placing the award in the hands of an attorney, gives him a lien upon it for his charges. Surely that cannot be correct. Mr. Cancellor stated that he declined to allow the attorneys' charges, because

he thought the 50 guineas quite enough to cover all the expense of the reference and award. He further reported that he had disallowed Armstrong's expenses on the same ground that they would have been disallowed if he had been called as a witness at the trial and rejected by the judge,—conceiving that the rejection by an arbitrator was the same in this respect as the rejection by a judge. MAULE, J.-It is no part of the master's functions to lay down any general principles: all that he has to deal with, is, the particular case before him.] The master's report, it must be conceded, is conclusive as to the charges for preparing the award but the taxation should be reconsidered as to the other point, -at all events, so far as relates to the expenses of Armstrong's attendance at Liverpool, as to which the same objection does not apply as to his attendance at Bolton.

JERVIS, C. J.—I am of opinion that this rule must be discharged. Mr. Atherton now admits that his application fails so far as regards the second ground, viz. the charges of the attorneys for preparing the award, because the master, as he reports to us, very properly considered *that the arbitrator's charge of 50 guineas for four meetings [*233 was amply sufficient to cover all the expenses he might fairly incur in obtaining the aid of a professional adviser. As to the other ground of the motion,-I have always understood the rule to be, that, where a witness is rejected at the trial, and the decision of the judge is not appealed from, the party calling him is not allowed his expenses. And it seems to me that there is no distinction in this respect between the case of a witness rejected by a judge and one rejected by an arbitrator, who is placed by the parties in the position of a judge, with all his powers and authority, and something more. We are not at liberty to go into the reasons for the witness's rejection. Upon this short ground, therefore, which is of universal application, I think the rule must be discharged.

MAULE, J.-I am of the same opinion. There seems to have been some mistake in supposing that the master intended to lay it down as a general rule, that a lay arbitrator cannot avail himself of the assistance of a professional adviser in the preparing of his award. And, even if he had done so, I apprehend it would of itself be no ground for sending the matter back to him; the plaintiffs must have shown, not only that there is no such general rule, but, further, that there is no such rule as applicable to this particular case. There is in truth no substantial difference between what the master has reported to us, and what was supposed to have been his mode of dealing with the matter. As to the witness Armstrong, I am disposed to think that he was not a witness the expense of whose attendance could properly have been allowed as between party and party. He seems to have been brought rather for the purpose of watching the evidence which might be given on the other

side, than for any useful purpose for which his own *testimony *234] could have been required. I entirely concur in the opinion expressed by the Lord Chief Justice as to the effect of the rejection of a witness by an arbitrator. One of the most important functions of an arbitrator is, to decide finally between the parties. The object of referring a matter to arbitration, is, the substitution for the ordinary course of judicial investigation, a more prompt, though possibly a less accurate, mode of decision. The arbitrator has power to determine every matter of law which may incidentally arise before him: the parties select him for their judge, subject to all the consequences which legally flow from his decision. Being thus competent to decide upon the admissibility of the witness, the arbitrator decides that he is inadmissible, and accordingly rejects him. It is said, that, in so doing, the arbitrator assigned a bad or an insufficient reason. Be his reason good or bad, we can only look to his decision. By the consent of the parties, that is to be final. It being, therefore, perfectly competent to the arbitrator to decide that the witness in question was not an admissible witness upon the issues joined in this cause, and he having so decided, the expenses of his attendance to give evidence were properly disallowed.

CRESSWELL, J.-I am of the same opinion. As to the charges of the attorneys for preparing the award, I think the master was perfectly justified in holding, that, where a lay arbitrator charged fifty guineas for four meetings, no further charge should be made for professional assistance in preparing the award. As to the witness, it is perfectly clear that a rejected witness cannot be charged for, whether rejected at Nisi Prius or by an arbitrator. The principle is the same in both cases. CROWDER, J.—I am of the same opinion. Upon the report made by the master of what took place before *him, I think the attorneys' *235] charges for preparing the award were properly disallowed; and it is quite unnecessary to enter into a discussion as to the propriety of allowing a lay arbitrator to obtain and to charge for professional assistance in preparing his award. As to the other point,—I should not feel disposed to decide that Armstrong was an inadmissible witness. I prefer to rest the determination of this rule upon the ground that the arbitrator assumes the functions of a judge in all respects; and, inasmuch as the costs of a witness rejected at Nisi Prius are disallowed on taxation as between party and party, so the master has rightly disallowed the expenses of the witness in this case because rejected by the arbitrator. Rule discharged, with costs.(a)

(a) As to the remedy in the case of an excessive demand by an arbitrator, see Miller v. Robe, 3 Taunt. 461, Fitzgerald v. Graves, 5 Taunt. 342 (E. C. L. R. vol. 1), Musselbrook v. Dunkin, 2 M. & Scott, 740, 9 Bingh. 605 (E. C. L. R. vol. 23), 1 Dowl. P. C. 722, Macarthur v. Campbell, 5 B. & Ad. 518 (E. C. L. R. vol. 27), 2 N. & M. 444, Brazier v. Bryant, 3 M. & Scott, 844, 2 Dowl. P. C. 757.

*SMITH v. ELDRIDGE and Another. June 5.

[*236

A. entered into an agreement (in writing) with B. to take certain premises, at a certain yearly rent, the premises to be put into repair by B., and the rent not to be payable until the repairs were completed. A., by his tenant, occupied the premises for six months, and then quitted, the stipulated repairs not having been done :-Held, that B. was entitled to maintain an action for use and occupation, as upon an implied agreement to pay so much as the occupation might be reasonably worth.

THIS was an action of debt for use and occupation; to which the defendants pleaded never indebted.

The cause was tried before Williams, J., at the first sitting in London in this term.

The plaintiff was a builder at St. Leonard's: the defendants were brewers. The action was brought to recover a half-year's rent of a house at St. Leonard's which was built for a beer-shop. It appeared that the defendants had taken the premises in an unfinished state, under an agreement by which it was stipulated that the landlord was to do certain repairs, and, amongst the rest, to put the drainage into a condition to satisfy the local board of health; the rent to be 55l. per annum until a public-house license should be obtained, and, after the license obtained, 657. per annum,―the rent to commence when the repairs were completed.

Under this agreement, the defendants, by one Bennett, their tenant, took possession; and Bennett and his family occupied the premises, and carried on business therein for six months, and then quitted, on the ground that the repairs had not been done as agreed, and that the premises were not habitable by reason of the defective drainage.

For the defendants, it was submitted that the plaintiff must be nonsuited, inasmuch as it appeared from the agreement that no rent was payable until the house was completed.

The learned judge told the jury that the agreement did not preclude the plaintiff from recovering a reasonable sum for the occupation of the premises, if the defendants thought fit to enter upon them before the repairs were done: and he left it to them to say whether the defendants did not take possession under an implied agreement to pay what the premises were reasonably worth.

[*237

The jury returned a verdict for the plaintiff, damages 301. Malcolm Kerr, on a former day, moved to enter a nonsuit, pursuant to leave, or for a new trial.-By the express terms of the agreement, which contemplated a present occupation of the premises, no rent was to be payable until the stipulated repairs were completed: and, those not having been done, the plaintiff was not in a condition to call upon the defendants for rent. [MAULE, J.-Suppose the drainage, and the other matters the omission to do which was complained of, were not necessary to be done to complete the premises according to the agreement, the plaintiff would be entitled to a half-year's rent, as contradis